Week of December 7, 2020
The Court intervenes in Central Vista, and ends a peculiar COVID practice!
Apex Court Weekly is a weekly round-up of judgments, petitions, orders and notices as they develop at the Supreme Court of India (“the Court”). We also occasionally cover High Courts. We cover some stories that gather national attention and some that should. This update is written by Rahul Srivastava, J.D. candidate at Cornell Law School, and supported by the Cornell India Law Center.
Government against family planning
Family planning has an ugly history in Independent India. This week, a government affidavit to the Court declared that any family planning policy is purely voluntary. Noting that the Constitution expressly declares health as a state subject, the government claimed that health policy implementation is left to the states and any central intervention only involves distributing money to the states.
Monitor e-voting in corporate governance
Franklin Templeton Investments is seeking to close down six mutual funds but needs approval from its investors before doing so. The case was before the Court after the Karnataka High Court did not let Franklin Templeton proceed with its actions without investor approval. As a result, the financial institution will deploy e-voting to gain approval. The Court asked the Securities and Exchange Board of India ("SEBI"), India's securities regulator, to appoint an observer to monitor the vote.
Court ends peculiar COVID practice
This week, the Court ended a peculiar practice where states and union territories were placing posters outside the homes of those isolating after contracting COVID-19. The Court stressed that the central government never issued directions mandating the practice and cited a letter stating posters were not required. The order is expected to limit social stigma inhibiting people from getting tested.
CAN'T MISS THIS
Court enters Central Vista project
In another example of the Court's plenary jurisdiction, the Court stayed construction on the new buildings that would seat the Indian government and Parliament from 2022 and 2024 respectively.
First announced in 2019, the revamp of India's Parliament and Central Secretariat is set to cost $2.2 billion. The construction will include a new Parliament, new buildings for ministries, and a new Prime Minister's office and residence. The government argues that the early 20th century buildings are ill-equipped to handle the demands of a modern government.
Critics argue that the project threatens India's heritage, carries environmental risks, lacks transparency, and inappropriately allocates important funds during this time. Anuj Srivastava, an architect and former Army officer who's one of the petitioners before the Court said that the project "[D]eals with the most iconic space in the country in a very unplanned manner".
While halting construction, the Court permitted the government to lay the ceremonial foundation and continue with the "necessary procedural processes"– such as paperwork– necessary to begin construction. During oral arguments, the Court observed surprise at the speed with which the government was proceeding with construction.
We will update the case as it develops at the Court.
Farmer laws unconstitutional
As protests continue over India's market-friendly agriculture reforms, the Bhartiya Kisan Union (Indian Farmers' Union) has petitioned the Court to strike down the new agriculture laws. The petition says that the laws were arbitrarily passed with limited discussion. Although not a precise legal argument, the petition also claims that the laws will make farmers beholden to commercial companies. Our September 28 edition introduced an article that argued the opposition to these laws was based on "crude fear-mongering of private enterprise".
Calamity could follow if interest waiver moratorium closed
Responding to a petition asking to expand interest waivers on loans, the government told the Court that doing so could threaten the entire banking system. Solicitor General Tushar Mehta said that financial institutions would face losses totaling more than 6 trillion rupees ($82 billion). For example, writing off interests would erase half the net worth of India's largest bank, the State Bank of India. Given that government capacity to pay these loans was limited, the government agreed to waive interest in loans up to 20 million rupees (~$274 million).
STORIES WE'RE READING
India descends into constitutional grey zone
Quoting Voldemort, this article warns that India is abandoning constitutional principles in its politics. Referring to India's agricultural reforms and ensuing protests, the author notes that the government did not adequately deliberate the reforms in Parliament and that protestors are deploying anarchy with the "Bharat Bandh". Both sides are engaging in a contest of power.
The long road to securing female representation at the Court
This article picks up from Attorney General Venugopal's comments last week on female representation in the Indian judiciary and examines the Court's struggles with putting women on the bench. Out of 245 Justices that have sat on the Court, only eight have been women (3.2%). None were appointed until 1989. In considering when there would be enough women on the Court, the author uses a familiar refrain: When there are 34.